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s200AB: 'special case' or 'flexible dealing' exceptions

New provisions were introduced in December 2006 that took effect from 1 January 2007. The purpose of these new provisions was to finalise the implementation of the 2004 Australia-US Free Trade Agreement (AUSFTA), address technological developments and provide clearer direction for users of copyright material in the digital environment.

The 'special case' or 'flexible dealing' provisions apply specifically to educational institutions for the purpose of giving educational instruction, libraries or archives for maintaining or operating the library or archives, and to a person with a disability and anyone assisting such a person for obtaining a reproduction of the material in another form that reduces the disability.

They do not apply if any other provision can be relied upon or applies.

Conditions of use

All of the following criteria must be met before s200AB can be relied on:

  • There are no other exceptions available to you
  • you are using the material for a set purpose
  • the use is not for commercial gain or profit
  • the use does not conflict with normal exploitation of the work
  • the use does not unreasonably prejudice the legitimate interests of the owner of the copyright
  • the use amounts to a special case.

An example of how this could be applied is:

A lecturer wanting to format shift a video that is no longer commercially available for the purpose of giving educational instruction.

Importantly each reproduction must be assessed on an individual basis to ensure that it meets ALL the criteria above. Please contact the Copyright Office before applying this provision or if you have any queries.